Amoeba Records Deals With Orphan Works By Pretending It Can Just Digitize & Sell Now, But Pay Later

from the not-quite-how-it-works dept

Glenn Fleishman has a typically fantastic post over at BoingBoing in which he discusses how the famed Amoeba Records chain has launched Vinyl Vaults, an online store for digitized music from vinyl records, available exclusively via the store. Amoeba, for those who don't know, is something of a mecca for music fans. I used to spend hours there buying CDs... until Amazon, CDBaby and the like just made it much easier for me to buy CDs (and eventually MP3s) online. I had no idea, but apparently Amoeba spent six years and $11 million building this online store. That seems like an awful lot. But here's the thing: it appears that the store is basically one giant case of copyright infringement, as Fleishman describes in detail.

Basically, Amoeba decided that if it couldn't find the copyright holder, it would just hold money for them in escrow, and be willing to hand it over should they ever come calling. And, while this might seem like a viable plan in a world that made some sense, it's not what the law allows. At all. Fleishman explores all of the legal nuances (including the fun stuff about how pre-1972 sound recordings are under wacky state copyright laws that have different rules, and won't go into the public domain for much longer than other works). Here's a snippet of the piece:

Where does this leave Amoeba? It seems to be standing on the notion that orphaned works are up for grabs so long as you pay out the owners' cut later when it's claimed. Orphaned works are creations for which no clear knowledge of ownership exists. But there's no provision in U.S. law for how to deal with orphaned works of any kind, music or otherwise. A proposal from 2006 was languishing at the Copyright Office, as it requires Congress to take it up (ha) to establish a clear procedure in law.

Go read the whole thing. It's yet another example of how copyright law makes no sense to most people.

Re:

If they're able to, then the work isn't orphaned anymore, and the orphan works problem for that work is settled. Of course, Amoeba would likely pay out the ass for copyright infringement. On the other hand, if Amoeba continues selling these orphan works without issue, would those works be considered abandoned and therefore in the public domain? This is going to lead to a bunch of court cases down the road, but at least we'll have precedent one way or the other. Unless Amoeba folds or settles, of course.

Think of the children

Re: Confused

It seems to be bashing Amoeba for what appears to be standing up for the public and trying to counter a broken copyright culture.

I know. I saw the excerpt below and thought, "Why is attention being brought to this? Let it continue to slide under the radar." I'd rather not see Amoeba being turned into a martyr in order to draw attention to copyright law.

Vinyl Vault lights fuse on copyright time bomb—but is it armed? - Boing Boing: "There's a problem here. There's no such provision in copyright law for such an exemption, and Amoeba could find itself in real trouble, no matter its goodwill and above-board behavior. This doesn't mean that current copyright law is reasonable on this score; it is not. Rather, that it's fairly clear that what Amoeba is doing isn't permitted.

"There's no active copyright police trolling for violations: rightsholders would have to discover Amoeba's work and decide to act, whether to claim escrow fees or file suit."

Isn't this exactly what record labels already do with mechanical rights in the UK, for artists not registered with a publisher? -- i.e. label them "Copyright Control", put the mechanicals in escrow, and them keep them if nobody has claimed them within 3 to 6 years.

Re: Re: Confused

Maybe some folks are pissed that Amoeba is actually setting aside money for rights holders. Perhaps they worry that Amoeba is setting a precedent in being prepared to pay them rather than simply bitching that the law won't let them share the recordings.

Like I said, I would like Amoeba continue to quietly do their thing; articles highlighting their "illegal" activity isn't helpful in that regard.

Isn't this how the labels were working in Canada with the compilation albums they didn't pay for for years?
They managed to walk away not paying the penalties for infringement why should this place be any different?

Re: Think of the children

Can you imagine the outrage if the world treated human orphans the same way they treat copyright orphans.

"Hey, kid. You don't seem to have parents, but we aren't 100% sure on that fact. Instead we are just going to lock you in a closet and and not feed, bathe, or attend to you and if no one comes to claim you by 70 years after your death then we will let someone adopt you! Good luck!"

Re: Re: Confused

I'd rather not see Amoeba being turned into a martyr in order to draw attention to copyright law.

I though the same with mp3.com (I spent quite a bit there on independent music before the RIAA sued them out of existence.) Yet, if they did one thing, it was to convince the RIAA that there was money to be made in selling MP3s online.

Re: Re: Re: Confused

I though the same with mp3.com (I spent quite a bit there on independent music before the RIAA sued them out of existence.)

I suppose, but I'd rather see people find workaround solutions now rather than spending so much energy arguing for or against changing copyright laws. That will take forever and seems like a poor use of resources. YouTube exists because Google offered rights holders a cut of advertising money. It went ahead and did want it wanted and figured out how to work in a grey area.

Seems like Amoeba is doing the same thing, finding a workaround.

An article saying that they are "pretending" seems to be highlighting them intentionally, perhaps to invite lawsuits against them. Like I said, perhaps someone wants to make them a martyr for a cause. Or stop them from offering to pay rights holders they haven't be able to track down.